The Leaked TPP: Some notes, and Criminal Copyright

Today Wikileaks released the latest leaked draft of the IP chapter of the Transpacific Partnership Agreement (TPP). The TPP is a plurilateral trade agreement being negotiated between select countries across the Pacific, and is the latest in a longish line of free trade agreements that address IP law in great detail.

Free trade agreement negotiations are subject to a surprising amount of secrecy, but select industry advisers have access to detailed US negotiating objectives. Today’s leaked text, dated May of 2014, allows public interest groups and the general public a chance to play catch-up to US industry advisers.

I suspect that the drafts are often leaked, or “pleaked“, by negotiating partners seeking to activate US public interest groups more sympathetic to their negotiating positions than to the positions proffered by the US. The leaked text shows evidence that such pleaking can work: more controversial provisions from older leaked drafts, including one in direct conflict with the Supreme Court’s decision on first sale doctrine in Kirtsaeng, have been removed. And the repeated leaking raises the question of why the US doesn’t voluntarily open the process up earlier- if leaking is now so prevalent that we’re going to see what’s in the agreements anyway, why insist on the dirty haze of secrecy and keep the public one step behind?

A number of people at public interest organizations (KEI, Public Citizen) have criticized the leaked text’s patent provisions for blocking access to medicines. The text also contains extensive provisions on geographical indications, and public performance rights, each of which raise significant issues (especially performance rights in light of the controversial Ninth Circuit decision in Garcia– for more on this issue in the international context, see Jacob Victor’s just-released essay).

The leaked draft also contains language on trade secrets that could be read to require a private cause of action, and may end up being used to launder federal law in the current debates over whether the U.S. should create a federal trade secrets private cause of action.

But the portion of the draft I would like to highlight is its provisions on criminal copyright law. Criminal copyright is a large part of what got ACTA rejected in the EU. As many have noted, the United States does not have the greatest interface between its copyright law and free speech rights, thanks to Supreme Court decisions in Eldred and Golan. As a consequence, Congress has been able to legislate into existence criminal copyright law that impinges on free speech values both by defining a low level of infringement as criminal, and by employing enforcement tools (such as the seizure of websites) that restrict freedom of expression.

The leaked draft shows a fight between the US and Canada over the scope of criminal copyright infringement and enforcement. Canada wishes to clarify that countries may restrict the criminalization of infringement to truly commercial scale infringement (see fn 183), while the US, per our domestic statute (the NET Act), wishes to reach noncommercial acts. The US fought China on this exact issue at the WTO and lost, so has been using free trade agreements to try to raise the TRIPS standard. The TPP parties are evidently debating whether to include the following: “For greater certainty, “financial gain” does not obligate a Party to provide criminal procedures and penalties in cases of de minimis infringements.” My guess, given past FTA language, is that the US comes down strongly against this footnote.

The underlying standard for criminal copyright infringement matters because it brings with it a host of enforcement tools, and active involvement by the state, thus implicating privacy in addition to free speech.

And when the low standard gets exported from the US, it can result in unintended consequences abroad. In Colombia, which enacted its current criminal copyright law pursuant to its free trade agreement with the US, a graduate student was arrested for posting a fellow scholars’ academic paper online without permission. Annemarie Bridy points to this prosecution as the consequence of US trade policy. And while the EFF is optimistic that the student should be acquitted under Colombian law, the case shows that free-speech fears over criminal copyright enforcement are real.

Until enhanced criminal copyright law comes off the US trade agenda, free trade agreements will continue to face opposition from those concerned about free expression and privacy online.